Smoking guns, science fiction: The best of court moments

Of the robes, wigs and folly of law

The tragedy, contradictions and faults of law practice espoused by philosopher Plato in his famous book on knowledge, Theaetetus, were in full display at Supreme Court earlier in the week.

For all their supposed brilliance, the array of lawyers in appearance at the apex court were always short of time, measured in speech, restrained in thought and enslaved by their clients. Their masters (clients) menacingly watched over them from behind, essentially depriving them of the three values Plato mentions in Theaetetus- “growth, straightness and freedom.” Swaying gently in their robes, gesturing to the bench and brandishing pieces of paper, the lawyers tore into each other’s case for hours in a limited but highly dramatized search for truth and justice.

Of science fiction and movie directors

Lawyer Ahmednesir Abdullahi, the man whom Justice Richard Kwach once compared to Greek mythology tragic figure Icarus, was in his haughty element when he summed up NASA’s petition as “mere rumors and political hyperbole.” Even if the threshold of proof were to be lowered, it would still be lost: “Even if you expunge all our responses and went with their side, it will still be lost. He went on to declare the petition as “science fiction” which could only interest Hollywood directors and actors, not judges of an apex court.

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Of ‘sleeping’ server hosts

Senior Counsel Paul Muite exposed his client to ridicule when he suggested that the reason IEBC was delay to enable access to their IT servers was because they were domiciled in Europe and since Europe’s time-zone is different from Kenya’s, the court had to await until Europe woke up. CJ Maraga cornered him: “Wake them up and comply with our orders.” Lead Counsel for the petitioner, James Orengo, also fumed that the orders had been given when Europe was awake.  The matter of server audit would later present an embarrassing moment for Orengo when he attempted to table a unilateral report: “Mr Orengo please take back your reports,” he ordered as the Siaya Senator helplessly took it in. “My Lords I will withdraw. We were just being diligent as we did not even know whether we will get the time to present our arguments on this.”

Where is the smoking gun?

In the mix of claims and counterclaims, arguments and counter-arguments, slight and praise, the fate of concrete evidence to sway judgment one way or the other remained unclear: “My Lords, where is the smoking gun?” Lawyer Harrison Kinyanjui exhorted in his accentuated twang. “Where is the evidence?” he repeated himself. He wouldn’t understand why NASA’s chief agent on the presidential poll wouldn’t write an affidavit despite being placed in a vantage position to oversight the process: “He chose to be silent, he said nothing, nothing!” Later on when presenting the IT server audit report, Orengo described it as the smoking gun that was being sought. “My Lords, somebody was asking for a smoking gun, there you have it and we are retaining one.”

Stray votes and ‘confused’ judges

 The most clueless moment of the entire hearing came in form of a simple inquiry of Deputy Chief Justice Philomena Mwilu on the justification of the disparity between presidential poll totals and the other races. Since every voter is given six ballots to case, the totals for all the races should be even or at the very least, easily be accounted for. Because of claim that there was no legal compulsion on voters to vote for all six races, Mwilu wanted to know how the ballots for which a voter decides to skip vote are accounted for or categorised. The game of musical chairs ensued when lawyer Ahmednasir Abdullahi, who was on the floor, cleverly passed it over to Ngatia who left Mwilu hanging and clearly unsatisfied. Another lawyer Tom Macharia took over and fumbled all through describing them as “stray votes” but easily reneging his ground when smoked out by Justice Smokin Wanjala. “Oh yes.” “They are not stray” “And that’s my point”, he waxed lyrical until he was swallowed up in the din of disapproval by fellow lawyers and members of public. He too surrendered to another lawyer Kamau Karuri who took a different route by firmly ascribing to them the term “rejected votes.”

Of the mystery of disappearing votes

The mystery of Bermuda Triangle in Atlantic ocean which swallows up the ships that cross it was brought to the fore in open court. Lawyer Pheroze Nowrojee (insert) described the Bomas national tallying centre in similar terms. “Just like Bermuda, Bomas is notorious for absence of knowledge on what happens to Form 34 A’s whenever they were brought there. They disappear and we don’t get to know what happens to them,” he said in a trembled speech.

Game of numbers? Not this one

The stakes in the petition were so high that NASA counsel Okong’o Mogeni surprisingly declared that an election was never about numbers only. He asked judges to blind themselves to numbers for the moment. “It’s not about numbers. It’s about whether the constitution and the law governing elections was adhered to or not. In this one, you don’t have to look for numbers.” The sudden disinterest in the numbers prompted respondent’s lawyers to ponder: “If elections is not about numbers then what is it about?

You made your bed, sleep on it

The maxim that what goes around comes around proved itself true at the Supreme Court this week. NASA lawyer Okong’o Mogeni had barely finished proposing constitutional amendments to extent presidential petition from the current 14 days when Justice Ibrahim Mohamed seized on the moment. Trembling and swallowing some words, Mohamed announced that he had been hoping that one day he would be able to express what he was about to, in open court. He proceeded to relay his frustration as chair of judiciary working committee on elections in extending the time period, frustrations taken up by his predecessor in the committee and now CJ (Maraga): “Finally, we ended up in Parliament, and who was the chair of that special committee? Orengo and Kiraitu!” CJ Maraga tried to stop his colleague from rubbing it in but he was determined: “We thought we had persuaded them but where did the Bill go? So there you are!” In short, he called the bluff of Orengo and his team. In equal measure, Maraga joked that Mogeni, now a Senator, was in a better forum to effect the amendment.

‘Boring’ lawyers and smiling judges

While some of the lawyers appearing in the court were given to drama and flowery speech, some were sold to precision and method. Lawyer Fred Ngatia and Paul Mwangi came out as boring to many listeners, but those who followed their train of thought could tell their target was principally the judges. Mwangi’s stint before the court saw many lawyers, including Tom Joseph Kajwang doze off and many more yawn dangerously. Deputy Chief Justice Philomena Mwilu was anything but smiles as she pierced the litigants with queries and follow up queries. She also dismissed Muite’s false sense of compassion on their (judges) pressure to deliver and Attorney General Githu Muigai’s purported advice on how to manage the petition.  In contrast, her affable boss Maraga was all smiles to the last tooth even when engaging in the most stubborn of situations.

Pythogras theorem and small things

Bombastic lawyer PLO Lumumba made the most of his limited address to the court to tear down his opponents one by one. In general, he dismissed their petition as an afterthought, one lacking in focus and particularity, one destitute of merit, and one that must meet one fate, dismissal. Their grievances, he summed them up, were small things that law has no cure. He dismissed Mogeni’s presentation as prescriptive, Amollo’s as Pythagoras theorem and Mutakha Kangu’s as “even more interesting and amusing.” “The thumb rule; never quote yourself! My Lords, Mutakha Kangu in his submission quoted his book…”

IT? Not everyone’s cup of tea

Chief Justice David Maraga was obviously technologically challenged if his flow of questioning was anything to go by. But his innocence in matters IT is not one to be played around with as lawyer Issa Mansur found out. “If access is allowed, you said it will interfere with the what?” he posed. With lots of gestures, Mansur gave a detailed explanation of their apprehension to which the CJ retorted: “I am not an IT expert but I thought their security are ingrained in the system?”

Of friendly fire and the wizard of Yimbo

The Supreme Court appearance was also an opportunity for lawyers to cut down each other to size. James Orengo seized the moment to dismiss Patrick Loch Lumumba’s elaborate presentation as “mixture of legal text and common prose.” One social commentator, Gabriel Ogunda, described this as “career-ending tackle on the wizard of Yimbo.” Orengo also tore into Lumumba’s allegory of new born baby in relation to the petition: “This is not a biological process, this is law.” At one point, Senior Counsel Paul Muite was stood on his feet when Orengo was already on feet. He admonished him: “I am on my feet”, to which Orengo retorted: “I am also on my feet.” Muite shot back, inaudibly: “When I stand you sit” as Orengo submitted.